Supreme Court allows appeal on damages but denies plaintiff's costs due to deliberate exaggeration of symptoms.

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

357/01

BETWEEN/

SIWSAN SHELLEY-MORRIS

PLAINTIFF/RESPONDENT

and

BUS ATHA CLIATH – DUBLIN BUS

DEFENDANT/APPELLANT

Judgment delivered on the 22nd day of January, 2003 by Denham J.

1. On the 11th December, 2002 reserved judgments were delivered by the Supreme Court (Denham J. and Hardiman J.) in the above

entitled action.

2. On the 18th December, 2002 the parties made submissions to the court on the issue of costs.

3. On the 26th October, 2001, The High Court ordered that the defendant was negligent, that there was contributory negligence by

the plaintiff, that the apportionment of fault to the defendant was 75 per cent and to the plaintiff 25 per cent. The total award was

determined at £172,500.00. It was ordered accordingly that the plaintiff recover against the defendant the sum of £129,375.00, being

75 per cent of the total award of £172,500.00 and the costs of the action when taxed and ascertained.

4. The defendant appealed the said order and judgment. The judgments of this court on the 11th December, 2002 allowed the appeal.

The determination of the contributory negligence of the plaintiff was varied to a finding of 50 per cent. The damages awarded were

reduced from a total award of £172,500.00 by the High Court to a sum of £90,000.00. Having determined the contributory negligence

of the plaintiff at 50 per cent, the sum to which the plaintiff was entitled was £45,000.00.

5. Counsel for the defendant submitted that the defendant had won on both the quantum and the issue of contributory negligence

and that costs should follow the event and that the defendant was entitled to the costs of the appeal. Further, he submitted that in

relation to the High Court order the damages had been reduced by the Supreme Court and the High Court order as to costs should be

disallowed or reduced. He referred to the Rules of the Superior Courts Order 99, rule 4 and sought a set off of the costs of the High

Court against the damages, or that the court direct that one set of costs be set off against another. Counsel submitted that even

though there had been a stay on the High Court order there had been a glitch in that despite that order the matter of the costs of

the plaintiff had proceeded to taxation and a sum had been certified. He stated that the defendant had paid 44,000 euro to the

solicitor of the plaintiff. He argued that this should not have occurred. In these circumstances he sought an order under the Rules of

the Superior Courts, Order 99, rule 4 for a set off.

6. Counsel for the plaintiff submitted that the appeal to the Supreme Court was carefully crafted: it related to liability and damages

and there was no mention of the matter of costs. Further, he argued that the defendant had not appealed or stayed the order for

costs in the High Court. He submitted that the defendant is estopped from seeking an order interfering with the order for costs in the

High Court. He argued that in the Supreme Court every issue had been opened and that the plaintiff won in that the defendant was

determined to be 50 per cent liable, for while the Supreme Court ordered an increase in the percentage of liability of the plaintiff the

liability of the defendant was affirmed.

7. The court was referred to a number of judgments: Donegal County Council v. O’Donnell (Unreported, High Court, 25th June, 1982,

O’Hanlon J.); F v. Ireland & Ors. Unreported, Supreme Court, 27th July, 1995; Little v. Dublin Tram Co. & Another [1929] I.R. 642; In

bonis Morrelli: Vella v. Morrelli [1968] I.R. 11.

8. Order 99 of the Rules of the Superior Courts relates to costs. Order 99, rule1(1) provides that the costs of and incidental to

proceedings shall be in the discretion of the courts. Order 99 rule 1(2) states that no party shall be entitled to recover any costs of

or incidental to any proceeding from any other party to such proceeding except under an order or as provided by the rules. By Order

99, rule1(3) the costs of every action, question, or issue tried by a jury shall follow the event unless the court, for special cause, to

be mentioned in the order, shall otherwise direct. Order 99, rule1(4) provides that the costs of every issue of fact or law raised upon

a claim or counterclaim shall, unless otherwise ordered, follow the event.

9. In the recent decision of Grimes v. Punchestown Developments Company Limited and MCD Promotions Limited (Unreported,

Supreme Court, 20th December, 2002) I stated:

“The normal rule is that costs follow the event. However, there are circumstances when a court on the facts of a case

determines that the normal rule will not apply. Indeed, a successful applicant may not succeed in obtaining an order for costs if

the facts indicate features which are unsatisfactory as to the way in which they acted, see for example Donegal County

Council v. O’Donnell, Unreported, High Court, O’Hanlon J., June 25th, 1982. The burden is on the party making an application to

show that the order for costs should not follow the general rule.”

10. The court exercises a discretion in making an order as to costs. Of the words in Order 99 rule 1 “shall be in the discretion of” the

publication of O’Floinn and Gannon, Practice and Procedure in the Superior Courts, states at p. 888:

“The Court must exercise this discretion on the facts of each case and not apply a general rule: Hewthorn and Company v.

Heathcott 39 ILTR 248. As to where costs were refused on the grounds that the plaintiff had acted unreasonably, see Flannery

v. Dean [1995] 2 I.L.R.M. 393.”

As to the words “follow the event” O’Floinn and Gannon state at pages 888-89:

“That is to say, are ordinarily awarded to the successful party. In circumstances where either plaintiff or defendant succeeds

outright, difficulties seldom arise; although, as indicated by this rule, the Court may award costs to an unsuccessful party in

appropriate circumstances. However, where each party succeeds in part, the application of the general rule as to costs yields

rather more complicated results. Each party may be directed to bear their own costs: Irish Press Plc v. Ingersoll Irish

Publications Ltd., Supreme Court, Unreported, 28th July, 1995. Alternatively, the Court may fix the costs payable in respect of

each party . . . or reduce the costs pro rata by that amount by which the damages claimed by each party have been reduced:

see s. 42 of the Civil Liability Act 1961 and Noone v. Minister for Finance [1964] I.R. 63.

...

‘for special cause’: As to where an appellant, although unsuccessful, has raised issues of public importance: F v. Ireland, High

Court, Unreported, 27th July, 1995. Such special cause must be established: Little v. Dublin United Tram Company and Another,

67 I.L.T.R. 236.

. . .”

11. The exercise of the discretion of the court in this case is related to the facts.

On this appeal the liability of the defendant was held to be grounded on determinations of fact by the trial judge made in light of his

assessment of the credibility of an independent witness. This court did not interfere with that determination of fact of the trial judge

in view of the jurisdiction of the court as an appellate court: see Hay v. O’Grady [1992] 1 I.R. 210. However, the contributory

negligence of the defendant was varied from 75 per cent to 50 per cent; thus on this aspect the defendant succeeded. As to

damages, the plaintiff’s claim for special damages failed. As to general damages, the sum of £70,000.00 for pain and suffering to date

was upheld but the sum of £40,000.00 for pain and suffering for the future was reduced to £20,000.00. Consequently, while the

plaintiff succeeded in retaining part of the award, the defendant was successful in having the special damages set aside, in reducing

general damages for the future, and in reducing the determination of the contributory negligence of the defendant.

Thus the facts present a mixed situation. In this mixed arena is the additional important fact that both judgments found a lack of

credibility on the part of the plaintiff. The position of deliberate exaggeration by the plaintiff was considered. The possibility of

applications for abuse of process in other such cases was raised. All in all I am satisfied that the conduct of the plaintiff, her

deliberate exaggeration of her symptoms for her claim, is an important factor in exercising the discretion of the court.

It is interesting to consider a recent English case, Molloy v. Shell U.K. Limited (Court of Appeal 6th July, 2001) All England Transcripts.

There there was an undoubted injury for which liability was not disputed. It gave rise to a claim in the course of which the claimant

personally signed a ‘Statement of Truth’ attached to the particulars of claim. The claimant alleged loss of earning in a sum exceeding

£300,000.00: this transpired to be ‘grossly and deliberately exaggerated’ and he recovered less than £20,000.00. The trial court

ordered the claimant to pay 75% of the defendant’s costs after a payment into court: the Court of Appeal increased this to 100%,

which was the only relief sought by the defendant. However Laws L.J. found that the claimant had been guilty of:

“Nothing short of a cynical and dishonest abuse of the Court’s process.”

He continued:

“For my part I entertain considerable qualms as to whether, faced with manipulation of the civil justice system on so grand a

scale, the Court should once it knows the facts entertain the case at all save to make the dishonest claimant pay the

defendant’s costs.”

It is important that the minority of plaintiffs who are prepared to engage in abuses such as those described be made aware that in

doing so they risk losing all their costs, may be made to pay the other side’s costs and raise the possibility of more drastic action.

There was no appeal from the order of costs of the High Court. In all the circumstances, and with consequences as set out

hereinafter, I would not interfere with the order of the High Court as to costs.

As to the judgment of the Supreme Court, while the plaintiff has retained an award of damages, on balance the defendant has been

more successful than the plaintiff. Added to this is the finding of deliberate exaggeration by the plaintiff.

The conduct of the plaintiff is an important factor in the exercising of the discretion of the court. I am satisfied that the plaintiff,

although obtaining an award of £45,000.00, is not entitled to her costs on the appeal as against the defendant, given the findings on

appeal.

The issue of an abuse of process by the plaintiff in view of her exaggeration of her claim was not argued specifically in the High Court.

There was no finding as to such a situation. If there was such it would have more weight as an issue relevant to the determination of

costs in a trial court and on appeal. In light of the fact that it was not argued in the trial court, and of the whole circumstances of

the case, I am not inclined to award to the defendant the costs of this case as against the plaintiff. However, this is a decision

particular to this case, and the issue of costs in other cases where claims are seriously exaggerated should be considered in light of

the facts of each case.

12. In all the circumstances of this case, and not as a general rule, I would make no order as to costs in the Supreme Court.